Opinion
CRIMINAL ACTION NO. 06-10392-GAO.
October 15, 2007
OPINION AND ORDER
The defendant, Christopher Pleas, is charged with being a felon in possession of a firearm and ammunition, a Baretta 9000S 9mm semi-automatic loaded with ten rounds of 9mm ammunition, in violation of 18 U.S.C. § 922(g)(1). The firearm was seized by police as the result of a "pat-frisk" of his person. Pleas moved to suppress the evidence, and the parties were heard on the issues presented based upon an essentially agreed-to factual record.
Facts
On August 19, 2006, a Boston police telephone operator received a "911" call from a woman who reported that about five minutes earlier she had seen a man who had three days before "put a gun up to my sister and her ex-boyfriend." She told the operator that she had called the police at the time of the earlier incident "[a]nd the police told me when I see him outside to call to let you guys know that I see him." She told the operator that she saw the man "on his porch" at 35 Catawba Street. The woman told the operator that she thought the man's name was "Christopher something" but "they call him McVey." In response to a question from the operator the woman said the man was "black." The operator then asked what the man was wearing and the woman answered, "I wasn't really sure but I know that was him on his porch. He has long braids. His braids go to his neck kind of. He has a lot of jewelry and that's about it."
Transcripts of this call and a subsequent call by the dispatcher to police units in the field were in evidence. (Dkt. nos. 18 19.) Though there were minor differences between the transcripts offered by the defendant and the government, those differences are immaterial to the resolution of the motion.
The operator asked the woman her name, but the woman declined to give it, saying "I don't want to get my name in the middle of all this." She also said, "And for me personally, I have thirteen brothers and I'm not trying to get any of them killed or getting none of my brothers locked up. That's why I'm calling. And I'm not trying to have my name put out there and then my name gets back to one of his friends and I have kids I've got to take care of." And further, she gave a telephone number where she could be reached, observing "I know you guys can get my name by my number."
The woman recounted for the operator the call that she said she and sister had made three days before. She (or her sister, it was not entirely clear) had reported then that the person "Christopher" had "decided to point out a gun on, on them," and was "just like threatening them, like oh, I should have shot you, duh, duh, duh." She said that the previous operator had given her a number to call back on if she should see the man with the gun. When she recited the number, the operator, apparently recognizing it, said, "Okay and that's for the district station."
After the call terminated, the operator made a call over the police radio to a unit in the field, instructing officers to "head up to 35 Catawba Street. Had a call for a male there. Apparently he put a gun to her sister's head a couple of days ago. The suspect is male in that area of 35 Catawba, has long braids in his hair, wears a lot of jewelry, has a nose piercing. His name is Christopher, a/k/a McPhee." An officer in another patrol car heard the message and broke in to say, "The last name on him is likely Pleas, P-L-E-A-S." An officer in the first car asked, "is he the one that's carrying a firearm?" The second officer replied, "Strong possibility."
Police officers proceeded to 35 Catawba Street, where they observed two black men sitting on the steps. One had long braids and rings on all his fingers. An officer asked that man if his name was Christopher, and he said it was. The officer approached him and pat-frisked him and detected a hard object. The officer took the object, a firearm, from the man's waistband and then placed him, the defendant, under arrest.
Legal Analysis
The validity of the pat-frisk that led to the discovery of the weapon is the focus of the defendant's motion to suppress. The defendant does not contest that if the pat-frisk was lawful, the seizure of the firearm and the arrest of the defendant were also lawful.
The government defends the frisk as a justified incident to a lawful investigatory stop under the principle articulated inTerry v. Ohio, 392 U.S. 1, 19-20 (1968). "Generally speaking, [an investigatory] stop is justified at its inception if the officer can `point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004) (quoting Terry, 392 U.S. at 21). In evaluating the validity of a Terry stop, a court must consider the totality of the circumstances, mindful that "[t]he concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules." United States v. Pardue, 385 F.3d 101, 105 (1st Cir. 2004). The government bears the burden of proving that there was reasonable suspicion where the defendant challenges the constitutionality of a warrantless seizure. United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).
The defendant argues that the tip that led the police to Catawba Street and encountered the defendant came from an anonymous source whose reliability had not been sufficiently determined. He relies on the line of cases that hold that "[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'" Florida v. J.L., 529 U.S. 266, 270 (2002) (quoting Alabama v. White, 496 U.S. 325, 329 (1990)); accord United States v. Beaudoin, 362 F.3d 60, 70 (1st Cir. 2004), reversed on other grounds, Champagne v. United States, 543 U.S. 1102 ("Anonymous tips, without more, do not justify free-wheeling police action."); United States v. Monteiro, 447 F.3d 39, 45-48 (1st Cir. 2006) (finding an uncorroborated anonymous second-hand tip passed along by an individual who admittedly did not witness the defendant commit the alleged crime an insufficient basis for reasonable suspicion).
At the heart of these cases has been a concern not with police reliance on tips they receive from citizens, but rather with the doubtable reliability of anonymous tips. For example, in J.L., the Supreme Court held unconstitutional an investigatory stop when the sole basis claimed for reasonable suspicion was an uncorroborated tip from an unknown caller in an unknown location. The Court concluded that such a tip lacked even "moderate indicia" of reliability of the sort that had been found adequate in other cases. 529 U.S. at 271.
It is not that anonymous tips can never provide adequate justification for a stop and frisk. It has long been recognized that an anonymous tip can form the basis for reasonable suspicion, so long as it carries "sufficient `indicia of reliability.'" Alabama v. White, 496 U.S. at 328 (quoting Adams v. Williams, 407 U.S. 143, 147 (1972)); accord Romain, 393 F.3d at 71. But an anonymous tipster's ability accurately to identify or describe a person is not enough. Rather, in order to support aTerry stop and frisk, the tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L., 529 U.S. at 272.
In this case, the 911 caller not only gave a detailed description of the physical appearance of the person, she also described actions by that person that would constitute a criminal offense — threatening another person with a brandished weapon. If sufficiently reliable, the information she conveyed warranted an investigatory stop. The question, then, is whether the 911 caller's report had sufficient "indicia of reliability" to justify the stop and frisk of the defendant.
The understandable caution about acting on reports from anonymous sources stems from the intuition that a truly anonymous source is unaccountable for any inaccuracy, or worse, deliberate falsehood. As a concurring opinion in J.L. put it, an anonymous tipster "has not placed his credibility at risk and can lie with impunity." Id. at 275 (Kennedy, J., concurring). Indeed, a desire to remain anonymous, and thus unaccountable, may be the result of the tipster's own awareness that the information provided is, or may be, unreliable.
There are other reasons, of course, for preferring anonymity. In particular, a person providing information to the police may be seen by an accused and his allies as a "snitch" who merits retribution. The caller in this case appeared to have that apprehension. She said, "And I'm not trying to have my name put out there and then my name gets back to one of his friends and I have kids I've got to take care of."
Even in the case of anonymous tips, however, there are some factors that might provide a satisfactory basis for assessing the tip to be reliable, such as an accurate prediction of what a subject will do, or a track record of accuracy from a recognized, if still anonymous, voice making repeat calls, or telephone caller identification or voice recording equipment. Id. at 275-76. Of course, corroboration from other identified sources may also support a conclusion of reliability. See United States v. Davis, 235 F.3d 584, 587-88 (D.C. Cir. 2000) (anonymous tip corroborated by information from identified eyewitnesses).
Some of these factors are present in this case. The woman who provided the information had called 911 twice. We know the second call was recorded — we have the transcript — and we can infer that the former was as well. She would have realized that the statements that she had made a report a couple of days earlier were thus capable of verification. Her knowledge of the local police station telephone number tended in some degree to corroborate her account of the prior contact with the 911 system. She also provided a telephone number where she could be called by the police. Further, she apparently believed that she could be identified, because when the operator said, "I don't have your name," she replied, "Well, I mean, I know that you guys can get my name from my number." In sum, the caller provided police with information that would have allowed them to verify important parts of her report and "hold [her] responsible if the information provided later turned out to be false." United States v. McFarlane, ___ F.3d ___, 2007 WL 2004704, at *3 (1st Cir. 2007).
It would be a mistake to think that the caution about relying on anonymous sources of information requires that the police actually have an informant's name. See Romain, 393 F.3d at 73-74. A person who provides a name is not ipso facto reliable. After all, the name provided could be false. Conversely, even without a name being given, the circumstances may support an objective judgment that the information is reliable. J.L., 529 U.S. at 275 (Kennedy, J., concurring). That is the case here.
Moreover, the caller's report received a measure of extrinsic corroboration as well. See Illinois v. Gates, 462 U.S. 213, 244-45 (1983). One of the officers who heard the 911 operator's radio broadcast indicated a familiarity with the defendant and the plausibility of the caller's story that he had brandished a gun. Having heard the physical description of the subject and the street location, the officer volunteered that "Christopher's" last name was Pleas and that there was a "strong possibility" that he was carrying a firearm. Although there was no expressed basis for the officer's knowledge, the spontaneity of the remark in the course of unfolding events strongly suggests a recognition from past experience with the subject. Not insignificantly, when the police first arrived at 35 Catawba Street, one of them asked the defendant if his name was "Christopher," to which he responded affirmatively.
For these reasons, I conclude that the investigatory stop was supported by reasonable suspicion. The pat-frisk was an incident to the stop, justified as a precaution for the safety of the officers, especially where the suspected criminal activity was an assault by means of a firearm.
The motion to suppress (dkt. no. 17) is DENIED.
It is SO ORDERED.